There were several recent FCC decisions on application processing matters worthy of note. One deals with the processing of commercial applications for FM stations or FM translators that are involved in an auction to resolve disputes, the others with the processing of noncommercial applications (in this case for LPFM stations). None break new ground – but instead they reinforce earlier decisions that some who have been around the broadcast industry had found surprising, so these decisions are worth noting. The commercial case involved the question of whether an applicant needs to receive “reasonable assurance of transmitter site availability” before specifying a transmitter site after a broadcast auction. The noncommercial cases deals with the dismissal of an application because of a change in the control of its board of directors while the application was pending.

The commercial case involved the application for a new FM translator in New Jersey, where a local broadcaster filed a petition asking that the translator application be denied as the applicant had never received permission to specify the tower site, owned by the petitioner, in the “long-form” application filed by the applicant after the applicant prevailed in an auction. After the petition was filed, the applicant amended his application to specify another transmitter site. But, under an old line of cases, the failure to have “reasonable assurance” of a transmitter site was fatal to an application and could not be corrected by a later amendment to an available site. In this week’s decision, the FCC reiterated a decision that it made a few years ago (see, for instance, our article here) concluding that, where an application is granted as a result of an auction, the applicant need not have “reasonable assurance” of its transmitter site at the time it files its “long-form” application (the application that specifies the technical details of the facilities that the applicant intends to use to operate its station).…Continue Reading FCC Application Processing Decisions – No Reasonable Transmitter Site Assurance Necessary for Auction Applications, Change in Control of Nonprofit Governing Board Fatal to Pending Applications

At the NAB Convention last week, FCC Chairman Tom Wheeler discussed the timing of the incentive auction and how some of the remaining issues may soon be resolved. One subject of talk in a number of NAB sessions, as well as in the trade publications, has been how the repacking of broadcast television spectrum will proceed after the auction. Even FM broadcasters noted the potential for disruption of their operations as the repacking may affect shared users of broadcast towers, and given that hundreds of TV stations potentially face changing out antennas to operate on new channels in the smaller post-auction television band.

The Chairman made clear that the FCC will be announcing soon, perhaps as early as this week, the “spectrum clearing target” for the auction. In other words, the FCC will be announcing how much of the TV band it intends to try to clear for wireless broadband uses, based on how many TV stations expressed interest in potentially taking a buyout of their spectrum in their commitments filed at the end of last month. After the targets are announced, the FCC will quickly begin the reverse auction, a process where, round by round, the FCC will lower the prices offered to TV stations to abandon their spectrum until the FCC has committed to buy just the right amount of spectrum to meet its clearing targets. Then, it will turn around and repackage and resell that spectrum to wireless companies in the “forward auction.” The Chairman indicated that the clearing target may also signal the answers to many other issues.…Continue Reading As Incentive Auction Draws Near, Focus Begins to Shift to TV Spectrum Repacking – and Even FM Broadcasters Take Note of Potential Issues

In a decision of the FCC Media Bureau’s Audio Division that may be of interest to the more technically minded broadcasters, the Commission found that an FM station’s supposedly nondirectional FM antenna should be treated as directional. This decision was in response to a complaint from another broadcaster on the same channel, arguing that the broadcaster in question was exceeding its licensed effective radiated power in the direction of the complaining station (which was also the direction of Dallas, toward the more densely populated areas that it was trying to serve). The station that received the objection argued that the apparent effect on its antenna pattern was simply the result of being side-mounted on the broadcast tower that it was using, and this kind of effect was common in the industry and impossible to avoid. Yet, in reviewing the pleadings filed by the parties, the FCC found that the supposedly nondirectional station looked far too much like a directional one, and ordered the licensee to reduce power to keep its ERP (effective radiated power) in the direction where it was greatest to a value within that set out in its license. What impact will this decision have on other FM stations with sidemounted antennas?

First, it appears that the this case is one where, at least according to the FCC decision, the station had specifically designed an optimized pattern that resulted in its significantly exceeding its permitted power in the direction of the complaining station. The FCC found that, in the direction in which its maximum power was being radiated, the station had an effective ERP of 274 kw, far in excess of its licensed 100 kw ERP. The Commission noted that the direction of the highest radiation was actually not in the direction of the station’s city of license. The FCC also found that the ratio of the power in the direction of maximum radiation to the power in the direction of the minimum radiation was 19.18 dB, far exceeding the maximum 15 dB ratio permitted for directional antennas. Finding these great discrepancies in what was supposedly a nondirectional antenna led the FCC to its decision that the antenna was designed to do what it did –radiate more than permitted in the direction of the complaining station. But does this decision have potentially greater impact?…Continue Reading When is a Nondirectional FM Antenna Really Directional? The FCC Weighs In

A flurry of fines against broadcasters have come out of the FCC in the last week. These fines highlight the scrutiny under which owners of broadcast stations can find themselves should an FCC Field Office inspector knock on their door. If the FCC pays a visit and finds a violation, a station is often looking at a fine even if it quickly takes corrective action. Let’s look at some of these fines and the issues raised by each.

Last week, there were two decisions that clarified FCC processing policies for new broadcast stations – one dealing with applications for commercial stations, and the other with applications for noncommercial FM stations. The commercial case made clear that an applicant for a new FM station in the auction process need not have reasonable assurance of the transmitter site that it specifies in its application at the time it files the application, as long as it amends to an available site before the application is granted. The second, a decision of the US Court of Appeals, upholds the grant of a new noncommercial FM station as a result of a point system analysis, and clarifies the 307(b) preference and when it can be decisive in noncommercial comparative cases.

In the commercial case, a bidder who lost a broadcast auction complained to the FCC that the winning bidder for a new FM station did not have “reasonable assurance” of the availability of the transmitter site that it specified after it filed its “long-form application” on Form 301 after being the successful bidder in an FCC auction for the new channel. The long-form application, filed shortly after the conclusion of a broadcast auction, is supposed to contain the complete engineering showing of the applicant specifying the technical facilities for the new station that it plans to construct. The facilities that are specified in this application are reviewed by the FCC staff to make sure that they comply with all FCC technical rules. In this case, the tower site proposed in the Form 301 was apparently owned by one of the owners of the petitioner, and the high bidder did not approach the tower owner for permission to specify her site in the application. Nevertheless, the FCC agreed to grant the application after the winning applicant amended its application to specify an available site. So what was the issue?…Continue Reading Two Decisions Clarifying the Processing of FCC Applications for New Commercial and Noncommercial Broadcast Stations – Auction Applications and Reasonable Assurance of Transmitter Site Availability

There are times that the FCC, though its Daily Releases, appears to be trying to make a point. And Friday was one of those days, when it simultaneously released four separate orders, each fining the owner of a tower used for communications purposes for failures to maintain the required tower lights on those towers. Three of the fines were for $8000, and one for $6000, and three were against broadcasters and one was against a non-broadcast licensee. The facts of each of the cases are slightly different – but together they make clear that the FCC demands that tower lights be maintained in operating condition, and will take few excuses for the failure of those lights to remain operational during required operating hours.

Two of the cases are particularly instructive as to the strict liability of the tower owner. In one case, the owner of the tower argued that it should not be fined, as it maintained a system to monitor tower lights, a system that had just been inspected and found to be in operating condition a few days before the FCC inspection which discovered that a light was out on the tower. Such monitoring systems are permitted by the rules as a substitute for daily visual monitoring of a tower’s lights. However, the FCC found that the station was not being fined for the failure to monitor the tower lights (as that obligation was met through the automatic monitoring system), but instead for the failure of the lights to be lit –a strict liability standard seems to be used to justify the fine.…Continue Reading Four Fines Up to $8000 for Tower Lighting Issues – A Message on the Importance to the FCC of Safety Issues

On September 26, the FCC will hold its next open meeting and, according to a Public Notice released Friday, will consider several issues important to different parts of the broadcast industry. For television broadcasters, there will be concerns about the proposal to do away with the “UHF discount,” which gives UHF stations a 50% discount in determining the number of households they reach when determining an owner’s compliance with the limitation that prevents any one company from owning television stations that reach more than 39% of the US television households. For radio, the FCC will be getting a report on the preparations for the upcoming LPFM window, allowing applications nationwide for new LPFM stations. That window, as we have written before, is to open from October 15-29. Finally, the FCC will be looking at modifications to its Antenna Structure Registration process – which could be important to all tower owners.

As the UHF discount issue is to be considered by the adoption of a Notice of Proposed Rulemaking, it is no doubt the more controversial of the broadcast issues to be discussed at the meeting. The discount was adopted by the FCC in analog days, when UHF broadcasters faced significant disadvantages. Analog UHF signals (TV channels 14 and above) simply did not travel as far as VHF signals, were less likely to penetrate buildings (especially as many over-the-air antennas were designed for VHF reception), and were far more costly than VHF operations (as VHF transmitters operated at far lower power levels than do transmitters for UHF operations). But, in the digital world, broadcasters found that the world had been turned on its end – with UHF signals being far preferable, as the VHF digital signal was found to be far more susceptible to interference, especially in urban areas. In the less forgiving digital environment (where a signal is either there or not, instead of the degraded "snowy" picture that you could get in the analog world), the UHF signal is generally preferred – despite the higher power costs and the fact that the signals still don’t travel as far.

The rules for determining when construction of a new tower may cause a distortion of the pattern of a nearby AM station, and when the party building the new tower has a financial obligation to remedy any interference caused, were clarified by the Commission in an order released late last week. The order makes clear that all towers used by FCC licensees must abide by these rules, putting into formal rules the existing general obligation that all “newcomers” that create interference to an existing licensee must be responsible for rectifying that interference. There was apparently some question about the duty of newcomers to rectify issues that they cause to AM stations, as the rules for all non-broadcast services did not explicitly include language embodying that concept.

The Commission also made clear that the distortion of an AM stations pattern would be measured by the “moment method,” a computer program that will determine if there is a disruption to the pattern, rather than by actual field strength measurements. Doing a “proof of performance” of an AM station can be a long and costly process. Thus the FCC several years ago authorized the moment method of modeling AM patterns (see our article here). In this order, the Commission extends the reliance on this method to the resolution of complaints about new tower construction interfering with existing AM patterns. Other specifics of the order are set forth below.

David Oxenford represents broadcasting and digital media companies in connection with regulatory, transactional and intellectual property issues. He has represented broadcasters and webcasters before the…

David Oxenford represents broadcasting and digital media companies in connection with regulatory, transactional and intellectual property issues. He has represented broadcasters and webcasters before the Federal Communications Commission, the Copyright Royalty Board, courts and other government agencies for over 30 years.

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David is a partner at the law firm of Wilkinson Barker Knauer LLP, practicing out of its Washington, DC office. He has represented broadcasters for over 30 years on a wide array of matters from the negotiation and structuring of station purchase and sale agreements to regulatory matters. His regulatory expertise includes all areas of broadcast law including the FCC’s multiple ownership limitations, the political broadcasting rules, EEO policy, advertising issues, and other programming matters and FCC technical rules.